Key Takeaway
NY court ruling on medical necessity claims allows expert testimony from witnesses who didn't prepare peer review reports, clarifying trial evidence rules.
This article is part of our ongoing medical necessity coverage, with 170 published articles analyzing medical necessity issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
The question of who can testify about medical necessity at trial represents a recurring procedural challenge in New York no-fault insurance litigation. Insurance companies frequently rely on peer review reports to deny claims, asserting that particular treatments or medical equipment were not medically necessary. When these cases proceed to trial, fundamental questions arise about the admissibility of the peer review reports themselves and whether insurance companies must call the actual peer reviewer as a witness or can instead rely on substitute experts.
This issue carries significant implications for both healthcare providers seeking payment and insurance companies defending denials. The procedural rules governing expert testimony, the admissibility of peer review reports, and the scope of permissible expert opinion directly affect trial strategy, case preparation, and ultimate outcomes in medical necessity disputes.
Understanding the proper boundaries of expert testimony becomes particularly important when insurance companies attempt to prove lack of medical necessity through witnesses who did not personally conduct the original peer review. Courts must balance the need for parties to present competent evidence with practical considerations about witness availability and the foundational requirements for expert opinions.
Case Background
In Promed Orthocare Supply, Inc. v Geico Ins. Co., a healthcare provider sued to recover payment for medical supplies it had provided to an injured patient. Geico denied the claim based on a peer review report concluding the supplies were not medically necessary. At trial, Geico presented expert testimony from a witness who had not personally prepared the peer review report upon which the denial was based. The Civil Court refused to consider this testimony, apparently believing that only the actual author of the peer review report could testify about medical necessity or that the peer review report itself needed to be admitted into evidence.
This procedural ruling led to a new trial being ordered after the Appellate Term reversed, establishing important principles about expert testimony in medical necessity cases.
Jason Tenenbaum’s Analysis
Promed Orthocare Supply, Inc. v Geico Ins. Co., 2017 NY Slip Op 51264(U)(App. Term 1st Dept. 2017)
“The Civil Court erred in refusing to consider expert testimony from the witness who did not prepare the peer review report on the ground that the peer review report was not admitted into evidence, and in indicating that testimony from the author of the peer review report was required. Testimony of an expert witness who did not prepare the peer review report upon which an insurer’s denial of claim was based can be used to prove a lack of medical necessity (see e.g. Metropolitan Med. Supplies, LLC v GEICO Ins. Co., 36 Misc 3d 141, 2012 NY Slip Op 51490 ). Moreover, at trial, an insurer cannot use a peer review report to prove its defense of lack of medical necessity (see e.g. A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 ). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154, 2012 NY Slip Op 50349 ), it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report.”
Here are some interesting rules (enunciated again). First, the peer report never goes into evidence. Second, the expert (whomever it is) can say what (s)he wants subject to an objection that is oversteps the utilization review. Third, the Court cannot act sua sponte.
Legal Significance
This decision establishes several critical principles that govern medical necessity trials in no-fault insurance cases. The Appellate Term confirmed that peer review reports are inadmissible hearsay at trial, preventing insurance companies from simply introducing the written reports as proof of their position. Instead, insurers must present live expert testimony to establish that treatment or equipment was not medically necessary.
Importantly, the court held that the expert witness need not be the same individual who prepared the peer review report upon which the denial was based. This provides insurance companies with flexibility in presenting their defense, particularly when the original peer reviewer is unavailable or would be impractical to produce. However, this flexibility comes with important limitations: the substitute expert’s testimony must remain confined to the grounds articulated in the original peer review report that formed the basis for the denial.
The burden allocation framework established by this decision places responsibility squarely on healthcare providers to monitor the scope of expert testimony and object when insurance company experts stray beyond the boundaries of the peer review report. Courts cannot intervene sua sponte to restrict testimony that exceeds the scope of the original denial. This creates a strategic imperative for providers to obtain copies of peer review reports through discovery and carefully prepare for trial by understanding the specific grounds upon which denials were based.
Practical Implications
Healthcare providers litigating medical necessity disputes must adopt specific trial strategies in light of this decision. First, providers should use discovery tools to obtain complete copies of peer review reports underlying claim denials. Without access to these reports, providers cannot effectively object when insurance company experts exceed the scope of the original denial rationale.
Second, providers must actively monitor expert testimony during trial and make timely objections when witnesses venture beyond the peer review report’s stated grounds for denial. The court will not intervene without a proper objection, meaning passive trial strategy can result in insurance companies expanding their defense beyond what was originally articulated.
For insurance companies, this decision provides valuable flexibility in marshaling expert testimony but requires careful witness preparation. Substitute experts must thoroughly understand the peer review report and limit their testimony to grounds actually stated in that report. Attempting to introduce new bases for denying medical necessity at trial invites objection and potential reversal.
Related Articles
- Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
- Civil Court Decisions in No-Fault Insurance: When Legal Reasoning Goes Wrong
- Medical Necessity in No-Fault Insurance: Understanding the First Department’s Victory for Insurance Carriers
- A prima facie case of medical necessity?
- New York No-Fault Insurance Law
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
170 published articles in Medical Necessity
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Frequently Asked Questions
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
How do you challenge a peer review denial?
To overcome a peer review denial, you typically need an affirmation or affidavit from the treating physician that specifically addresses and rebuts the peer reviewer's findings. The treating physician must explain the medical rationale for the treatment, reference the patient's clinical findings, and demonstrate why the peer reviewer's conclusions were incorrect. Generic or conclusory statements are insufficient — the response must be detailed and fact-specific.
What criteria determine medical necessity for no-fault treatment in New York?
Medical necessity is evaluated based on whether the treatment is appropriate for the patient's diagnosed condition, consistent with accepted medical standards, and not primarily for the convenience of the patient or provider. Peer reviewers assess factors including clinical findings, diagnostic test results, treatment plan consistency with the diagnosis, and whether the patient is showing functional improvement. Treatment that is excessive, experimental, or unsupported by objective findings may be deemed not medically necessary.
Can an insurer cut off no-fault benefits based on one IME?
Yes, an insurer can discontinue benefits after a single IME doctor concludes that further treatment is not medically necessary or that the claimant has reached maximum medical improvement. However, the IME report must be sufficiently detailed and the denial must be issued within 30 days under 11 NYCRR §65-3.8(c). The treating physician can submit a rebuttal affirmation explaining why continued treatment is necessary, forming the basis for challenging the cut-off at arbitration.
What is a peer review in no-fault insurance?
A peer review is a paper-based evaluation where a licensed medical professional reviews the patient's records and renders an opinion on whether the billed treatment was medically necessary. Unlike an IME, the peer reviewer does not examine the patient. The peer review report must be detailed, address the specific treatment at issue, and explain the medical rationale for the opinion. Generic or boilerplate peer reviews that fail to address the patient's individual clinical presentation may be found insufficient.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a medical necessity matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
